1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 148 of 2010 ------- Sagar Mehra, son of Late Toto Mehra, residing at Lohia Nagar, Post Godda, Police Station Godda, District Godda ... Petitioner Vs. 1.The State of Jharkhand 2.The Deputy Commissioner, Pakur, 3.The Block Development Officer, Littipara, Pakur 4.The Accountant General, Jharkhand, Ranchi .… … ... Respondents ------ CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ------ For the Petitioner : Ms. Ritu Kumar, Advocate M/s Samavesh Bhanj Deo, Vikash Kumar & Shatakshi, Advoates. For the Res-State : Mr. Sarvendra Kumar, J.C to S.C. (L &C) For the Accountant General: Mr. S. Srivastava, Advocate. ------ 20/ Dated:
20. h September, 2016 Per Pramath Patnaik, J.: In the accompanied writ application, the petitioner, has inter alia, prayed for quashing part of letter as contained in Memo dated 18.01.2008 (Annexure
10) communicating him that a sum of Rs. 4,80,743.95 is recoverable from him, and further sought a guideline with regard to payment of retiral dues including the benefit of 1st and 2nd A.C.P Scheme along with interest @ 18 % per annum on all the dues from the date of retirement till the actual payment.
2. The facts, as disclosed in the writ application, in a nutshell is that initially the petitioner was appointed on the post of Panchayat Sevak in the year 1966. After rendering considerable years of service, the petitioner along with others were granted Junior Selection Grade and Senior Selection Grade and also Super Time Selection Grade vide Memo dated 30.07.1996. The petitioner was put under suspension vide Memo dated 5.6.2002 in contemplation of a departmental proceeding but neither charge- 2 sheet was served upon the petitioner nor any Enquiry Officer was appointed. In the meantime, the petitioner superannuated from services w.e.f 28.02.2003, while he was under suspension. After retirement, when the petitioner was not paid retiral dues, he approached this Court for redressal of his grievances invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.
3. Learned counsel for the petitioner has strenuously urged that impugned order under Annexure 10 is not legally sustainable in view of the specific provision under Rule 43(b) of the Jharkhand Pension Rules. Apart from that, learned counsel for the petitioner submits that the impugned order passed by the respondent revoking the order of suspension after retirement from services as disclosed in Annexure GB dated 4.9.2009 of the counter affidavit is not legally sustainable since petitioner retired much prior to the revocation of the suspension. Learned counsel further submits that the alleged departmental proceeding, which was initiated on 11.2.2003 has not culminated to its finality, therefore, in absence of any specific finding under departmental proceeding no amount is recoverable from the petitioner. Moreover, the alleged omission, so far as recovery of alleged amount of Rs. 4,80,743.95, stated to have been taken as loan by the petitioner, is nothing but an attempt on the part of the respondents to cause prejudice so as to deprive the petitioner from getting legitimate post retiral benefits. It has been submitted that recently, the petitioner has been granted provisional pension. Referring to supplementary counter affidavit dated 22.07.2016, in particular paragraph 5,6, and 7, it has been submitted that the proceeding, which was initiated against the petitioner has not been concluded and no final order 3 has been passed. It has been submitted that in view of the categorical affidavit filed by the respondents-authorities, the impugned order under Annexure 10, so far recovery of the aforesaid amount is concerned, is not legally sustainable.
4. As against the submission of learned counsel for the petitioner, J.C to S.C. (L & C), appearing for the State, reiterating the averments made in the counter affidavit submits that the petitioner remained unauthorizedly absent from 1.11.1996 to 17.08.2001. It has further been submitted that the petitioner while posted at Pakur Block a sum of Rs. 4,80,743.95 is shown as advance against him in respect of various schemes, as stated in letter dated 18.07.2000 by Block Development Officer, Pakur. Learned counsel for the State further submits that though from 18.08.2001 to January, 2002, the pay of the petitioner has been withdrawn and is kept in the office till date but he has not appeared for receiving the salary due to his unauthorized absence. Learned counsel for the State also referred to the supplementary counter affidavit dated 22.07.2016, wherein it has been averred that vide memo dated 5.6.2002 by the then Deputy Commissioner, Pakur put the petitioner under suspension and initiated departmental proceeding against him. However, the departmental proceeding was not concluded. In the meantime, vide letter dated 4.9.2009, his suspension order was revoked by the Deputy Commissioner, Pakur and direction was issued to B.D.O., Littipara to pay all dues to the petitioner after realizing the unadjusted amount against him. It has further been submitted that till date departmental proceeding has not been concluded and no final order has been passed. 4 5. After hearing learned counsel for the parties at length and on bestowing my anxious consideration to the documents available on record, I am of the considered opinion that the petitioner has been able to make out a case for interference due to following facts, reasons and judicial pronouncements: (I).In the instant case, while the petitioner was continuing in service, he was put under suspension vide order dated 05.06.2002 for unauthorized absence from duties and during continuance of suspension, the petitioner retired on 28.02.2003 on attaining the age of superannuation. However, just few days prior to his retirement on 11.02.2003, the departmental proceeding was initiated against the petitioner, which has not culminated. Therefore, proceeding ought to have been taken as per rule 43 (b)of the Jharkhand Pension Rules but the respondents even did not conclude the proceeding. For better appreciation, it would be apposite to quote Rule 43(b) of the Jharkhand Pension Rules, which is quoted herein below: “43(b).The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on reemployment after retirement. ” It is no more res integra that after retirement from services no recovery can be made without invoking Rule 43 (b) of the Jharkhand Pension rules, as decided by Full Bench of this Court in the case of Dr. Dudh Nath Pandey Vs. State of 5 Jharkhand & Ors. as reported in 2013(4)JBCJ421(HC) . Hence, the impugned order of recovery at Annexure 10 to the writ application, is not legally sustainable. (ii).On perusal of the supplementary counter affidavit dated 22.07.2016, it is quite apparent that the order of suspension has been revoked by the respondents-authorities on 04.09.2009 much after retirement of the petitioner from services. The respondents after retirement from services of the petitioner is bereft of to power to pass order regarding the order of suspension. On that score, the order of revocation of suspension much after retirement is not legally sustainable. Since in the impugned order, the respondents-authorities have taken care of period of suspension and that has been treated as period spent on duty and entitled the petitioner to the salary for the period of suspension, so no specific direction need be issued to the respondents so far salary for the period of suspension is concerned. (iii).So far as recovery is concerned, learned counsel for the petitioner referring to paragraph 31 of the writ application, which says that the amount is not recoverable from the petitioner, submitted that in the counter affidavit filed by the respondents, the respondents have not controverted the specific averment made by the petitioner, hence, the said contention is to be allowed in view of doctrine of non-traverse.
6. In view of the discussions made in the forgoing paragraphs and the logical sequitter to the aforesaid reasons, the impugned order so far as recovery of Rs. 4,80,743.95 is concerned, is hereby quashed and set aside and the respondents are directed to pay all 6 the retiral dues along with statutory interest of the petitioner within a period of four months from the date of receipt/production of copy of this order. However,disposal of the writ application shall not preclude the respondents from taking steps for recovery of the amount in question, in accordance in law. (Pramath Patnaik, J.) Alankar/-